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ELCDismissedCivil Suit No 141 of 1995· [2018] KEELC 4778 (KLR)

Gerald Mwithia v Meru College of Technology (Sued Through The Chairman Board of Governors) & another [2018] KEELC 4778 (KLR)

Environment and Land Court
23 January 2018
LML. N. Mbugua
1,632 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to undo 2001 default judgments because a litigant who blames their lawyer still must show they personally followed up the case.

What this practically means

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Executive summary

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The defendant, a college, brought a Notice of Motion dated 9th June 2008 seeking to set aside an interlocutory judgment of 10th April 2001 and an ex parte judgment of 24th September 2001 entered in a suit filed in 1995, and leave to file appearance and defence out of time. It claimed it had handed the summons to State Counsel Mutuku, who allegedly assured it that appearance and defence were filed and that the plaintiff had withdrawn the suit; it only learned of the judgments when served with a notice of taxation in June 2008. The plaintiff, Gerald Mwithia, opposed, contending the applicant was indolent, had no evidence of instructions to State Counsel, and that the defence was a mere denial; execution was imminent. The court, L. N. Mbugua ELC J, held that discretion must be exercised judiciously, but service of summons was admitted, the applicant was untenably assuming all was well merely because it had instructed an advocate, and it had not shown tangible steps to follow up the matter. The case was very old - the underlying agreement dated 1983, original plaintiff dead and original defendant ceased to exist - so restarting would be unjust. The draft defence was a general denial, and no explanation was given for the application lying unprosecuted for ten years since 2008. The court found prolonged and inexcusable delay, dismissed the application with costs to the respondent, and left the 2001 judgments intact.

Key legal issues

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01

Whether blame on State Counsel excused non-filing of appearance and defence

Holding

It was not enough to blame Mr. Mutuku; the applicant had to show tangible steps to follow up the matter

Reasoning

The applicant admitted service of summons in 1995. It entrusted the matter to State Counsel who allegedly never filed pleadings and misadvised that the suit was withdrawn, but the applicant produced no evidence of instructions or follow-up. Given the age of the case, deaths of original parties and the lapse of about 26 years, restarting the case would be unjust.

p. 4
02

Whether the delay was excusable

Holding

The delay of about 13 years in defending and 10 years in prosecuting the application was prolonged and inexcusable

Reasoning

The suit was filed in 1995, judgment entered in 2001, yet the application was only brought in 2008 and never prosecuted until 2018. No notice of judgment was served, but the applicant's own indolence predominated. No plausible explanation was advanced for the inactivity.

p. 4
03

Whether the draft defence raised a triable issue

Holding

The draft defence was a mere general denial

Reasoning

The court noted the draft defence contained only a general denial of the plaintiff's claims, so allowing the application would not have advanced a legitimate trial of the issues even if delay had been excused.

p. 4

Legal principles established

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  • A litigant owns the case and cannot simply blame the advocate when an adverse decision is made; the litigant must follow up the case
  • The court's discretion to set aside judgment must be exercised judiciously to avoid injustice from accident, inadvertence or excusable mistake

Court orders

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  1. 1.The Notice of Motion dated 9th June 2008 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder XXI Rule 6

Cases cited (12)

  • Kiare vs. Njoroge
    [1986] KLR 402
  • Pithon Waweru Maina Vs Thuka Migiria
    [1982-1988] KAR 171
  • Maina vs Muriuki
    [1984] KLR 407
  • Maina vs Mugiria
    [1983] KLR 78
  • Waweru vs Ndiga
    [1983] KLR 236
  • Daniel Murithi Kamonde vs Mary Wanjiku Kamonde
    unreported
  • Orion East Africa –Vs- Mugama Farmers Co-operative Union Ltd & Anor
    [2015] e KLR
  • Savings and Loans Limited Vs. Susan Wanjiru Muritu
    Nrb (Milimani) HCCC No. 397 of 2002
  • Chandaria Industries Ltd Vs. Sonal Holdings (K) Ltd and Anor
    [2014] e KLR
  • First American Bank of Kenya Ltd & Anor vs Grandways Venture Ltd
    Civil Appeal No. 173 of 1999
  • Bi-Mach Engineers Ltd Vs James K. Mwangi
    [2011] e KRL
  • Alice Mumbi Nyanga Vs. Danson Chege Nyanga & Another
    Civil Case No. 394 B of 2001 (2006) e KLR
Jurisdiction invoked
Inherent discretion of the High Court/ELC to set aside interlocutory and ex parte judgments (Civil Procedure Rules invoked, e.g. Order XXI Rule 6 referenced)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gerald Mwithia v Meru College of Technology (Sued Through The Chairman Board of Governors) & another [2018] KEELC 4778 (KLR)", Case Analysis (2018). Civil Suit No 141 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4778/eng@2018-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.